The Wage and Hour Division (WHD) of the Department of Labor (DOL) issued four Wage and Hour Opinion Letters providing its opinion on several Fair Labor Standards Act issues including exempt employees who also do nonexempt work during the same workweek, bonuses, meal periods, and timekeeping and compensation practices. The Equal Employment Opportunity Commission (EEOC) issued a revised National Enforcement Plan for Fiscal Years 2025–2029.

DOL Issues FLSA Opinion Letters

The Wage and Hour Division (WHD) of the Department of Labor (DOL) issued four Wage and Hour Opinion Letters interpreting the Fair Labor Standards Act (FLSA). The opinion letters, which are fact specific, represent the position of the DOL on the issue(s) presented. Wage Hour Division Administrator Andrew Rogers stated, "Opinion letters explain how the laws enforced by the division apply in specific situations and circumstances that are faced by employees, employers, and others every day across America."

Opinion Letter 2026-5 addressed whether an exempt employee who performs additional non-exempt work during the same workweek is entitled to overtime compensation. The opinion concluded that "under the circumstances presented, the performance of additional non-exempt work at an hourly rate is insufficient to alter the employee's exempt status under the FLSA as long as the employee's primary duty remains the performance of exempt work and the salary requirements continue to be met."

An employee who works at a hospital whose primary job is that of Nursing Professional Development Specialist, an exempt position, inquired as to whether the additional work he did on weekends as a Staff Nurse, a non-exempt position, is entitled to overtime. The WHD noted that the additional Staff Nurse shifts worked by the Nursing Professional Development Specialist constituted between 23% and 38% of the total hours worked per week.

The WHD explained that under the FLSA regulations, to be considered exempt, the primary duty of an employee must be work that qualifies for an exemption and this work must constitute more than 50% of the work performed during a workweek. Additionally, the base pay must exceed the minimum amount required to be considered exempt, which it did in this case. The opinion found that "the additional hourly compensation that a Specialist receives for work performed while picking up some hourly shifts as a Staff Nurse does not violate the salary basis requirement or defeat the exemption."

Opinion Letter 2026-6 addressed whether the quarterly payment of a nondiscretionary bonus constituted a percentage of total earnings bonus that would include any overtime compensation due on the bonus. The employer on whose behalf the request was made pays a quarterly bonus to eligible employees based on sales revenue during the quarter. The employer generates a gross earnings report including straight and overtime compensation during the quarter by eligible employees. The employer determines each employee's share of the bonus pool which is based on the percentage that each employee's gross compensation represents of the total gross compensation paid to all eligible employees during the quarter. That percentage is then multiplied by the bonus pool amount to determine quarterly bonuses. The WHD citing the FLSA regulations concluded that "a bonus that increases an employee's total earnings by a fixed percentage increases both straight time and overtime wages by the same percentage and thereby includes proper overtime compensation as an arithmetic fact."

Opinion Letter 2026-7 concerned whether a meal period was sufficient even if it was difficult for employees to leave the premises during the time provided. The WHD concluded that the "employer provides a bona fide meal period consistent with 29 C.F.R. § 785.19 because you are relieved from your work duties during the 30-minute meal break, and the period is sufficient to allow you to use it for the purpose of eating a meal."

The employee filing the request worked at a large facility with parking located a significant distance from work areas. A 30-minute unpaid meal period is provided during which employees can leave the premises or remain at the work site. The employee indicated it takes 5 to 10 minutes to walk from the job site to the parking lot and a similar amount of time to return to the work site, thus leaving only 10 to 15 minutes for the meal period. The employee complains that this discourages employees from taking meal breaks offsite.

The WHD noted that the relevant regulation provides that 30 minutes or more is long enough for a bona fide meal period as long as employees are relieved from duty so that they can eat their meals. The WHD believed that "the fact that an off-site meal may be difficult to undertake in the time provided does not affect whether you receive a bona fide meal period."

Opinion Letter 2026-8 responds to questions about the timekeeping and compensation practices of a hospital. The WHD believed that "the hospital's timekeeping and pay practices raise substantial questions as to whether the employer at issue has met its obligations to pay for all compensable hours worked under the Act." The WHD advised that pre-shift activities that are "integral and indispensable" to principal job duties should be compensated. Those activities, according to the WHD, that are "preliminary or postliminary" such as waiting in line to clock in and out are not compensable hours worked if they "occur before an employee's first principal activity of the day or after the last principal activity of the day."

The opinion letter request was filed by a non-exempt employee of a public hospital who alleged that employees are given the flexibility to clock in up to 7 minutes early to avoid being late and employees often clock out at the end of their shifts due to the limited number of timekeeping stations. The employee contends that the timekeeping system rounds the times to the scheduled shift times despite some employees regularly engaging in pre-shift work activities immediately after clocking in that are integral to their principal job duties for which they should be compensated. The WHD believes that if on a daily basis employees are performing compensable work prior to their paid shifts starting, the work is unlikely to be de minimis. If the pre-shift work is irregular, it could be considered de minimis for which employees need not be compensated. The WHD recommends that "To ensure compliance with the Act and its regulations, and to minimize potential liability, employers like the hospital here should consider proactive steps to implement and enforce clear policies prohibiting employees from performing any work-related activities outside their scheduled shift."

EEOC Issues New National Enforcement Plan

The Equal Employment Opportunity Commission (EEOC) released a revised National Enforcement Plan (NEP) for fiscal years 2025–2029. EEOC chair Andrea Lucas stated, "The National Enforcement Plan reaffirms the agency's unwavering commitment to merit-based, evenhanded enforcement of our nation's civil rights laws."

Among what the EEOC refers to as global principles is the prioritization of disparate treatment (intentional discrimination) by an employer. The EEOC acknowledges that Title VII of the Civil Rights Act of 1964 includes disparate impact liability, but the Commission believes that intentional discrimination allegations by an employer "inherently are more egregious forms of discrimination than unintentional disparities between groups of employees which arise from an employer's neutral practices." The EEOC will stop using disparate impact liability theories in investigations and will no longer pursue litigation based on disparate impact claims.

The NEP includes several priorities such as potential violations of employment laws that contain issues with a likelihood of significance beyond the parties to the dispute. Other priorities include matters involving intentional discrimination against employees or applicants in hiring, layoffs, job mobility, fringe benefits, and/or compensation such as policies or practices that preference guest worker visa holders or diversity, equity, and inclusion (DEI) programs. Another priority is cases that could promote the development of law for statutes enforced by the EEOC, including claims concerning the scope of recent United States Supreme Court decisions, DEI practices, programs, and policies, the analysis of voluntary affirmative action programs, the obligations of employers to reasonably accommodate religious practices, clarifying employees' rights to single-sex spaces, and the scope of liability under the Pregnant Workers Fairness Act.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at [email protected].